STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NO.: FL210067RO
HERON MANAGEMENT, Ltd./
JOSEPH BABECKI,
DISTRICT RENT
ADMINISTRATOR'S
DOCKET NO.: DL210483S
PETITIONER SUBJECT PREMISES:
2080 Ocean Ave.
Apt.4c,
Brooklyn, NY
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on November 26, 1991 concerning the
housing accommodations relating to the above-described docket
number.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the
issues raised by the petition.
The issue in this appeal is whether the Administrator's order was
warranted.
On December 11, 1989, the tenant commenced this proceeding by filing
a complaint asserting that the owner had failed to maintain certain
services in the subject apartment.
On January 19, 1990, DHCR transmitted a copy of the tenant's
complaint to the owner.
In its answer filed on January 25, 1990, the owner asserted that the
tenant has not responded to the certified letter requesting access.
The owner submitted proof of certified mailing and return receipt.
FL210067RO
On January 22, 1991 and March 8, 1991, DHCR informed the owner of
the procedures for scheduling a No Access inspection. There is no
indication in the record below that the owner complied with
requirements set forth therein. Accordingly a routine inspection of
the subject apartment was conducted on June 17, 1991 by a DHCR staff
member who reported that the handle on the shower sliding door is
broken and that the air conditioning unit located under the right
side window has been emptied, allowing air seepage into the bedroom.
A re-inspection was conducted on October 22, 1991 which investigated
and confirmed the complaint of air seepage from the living room air
conditioner sleeve, not addressed in the initial inspection request.
Based on these inspections, the Administrator issued an order on
November 26, 1991 that directed restoration of these services and
further ordered a reduction of the stabilized rent.
In the petition for administrative review, the owner contends as
below, that the tenant continuously refused access; submits a court
stipulation dated May 7, 1991, signed by the tenant, indicating
tenant's withdrawal of all pending DHCR complaints; and asserts that
all repairs have been completed.
On January 7, 1992, DHCR mailed a copy of the owner's petition to
the tenant, who interposed an answer.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
The Administrator's determination was based upon two on-site
inspections conducted by a staff member who confirmed the existence
of defective conditions. The owner does not dispute the results of
these inspections.
The bare assertion of completed repairs, and the claim and evidence
of tenant's withdrawal of DHCR complaints in a court stipulation,
were not presented in the proceeding below prior to the issuance of
the Administrator's order, but are raised for the first time on
appeal. As such, these matters are beyond the scope of
administrative review which is limited to a review the issues and
evidence before the Administrator, and not to consider new claims
and evidence.
The owner's claim that the tenants withdrew the complaint is also
defective in light of Section 2520.13 of the Rent Stabilization
Code, which sets forth that a tenant may negotiate a settlement in
a court competent jurisdiction to withdraw a complaint pending
before the DHCR, provided the tenant is represented by Counsel.
There is no evidence presented, nor is it alleged by either party,
that the tenant was properly represented. In fact, the owner's
petition suggests that the Court has since recognized that the
tenant was "incapable of diealing with the above Court directives".
FL210067RO
The determination below was proper in light of the record below, and
should be sustained.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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